Pedro Pierluisi's swearing-in as governor yesterday created a complicated legal scenario for the Executive Branch according to constitutional experts who outlined questions about whether an unconfirmed Secretary of State can be in the line of succession to replace former Governor Ricardo Rosselló.
According to Julio Fontanet - dean of the Inter-American University School of Law - Pierluisi's permanence as governor could be in the hands of the Senate since this chamber has greater legitimacy to claim in court that his arrival at La Fortaleza undermined the analysis on his appointment as Secretary of State.
"It seems to me that the ball is in the Senate now. Any member of the Senate can bring an action before the court, claiming that his legislative prerogatives have been violated since he was not allowed to give consent to the appointment," agreed constitutional lawyer Yanira Reyes Gil.
Pierluisi has been in office since yesterday at 5:01 p.m. after the now-former governor announced him as his successor. A little more than an hour earlier, the House confirmed him as Secretary of State. The Senate had announced they would evaluate the appointment Monday at a public hearing, and take it to a vote Wednesday. However, yesterday the Senate moved the vote to Monday.
Rosselló based his decision on a 2005 amendment to Law 7-1952, which establishes the order of succession. The amendment provides that the Secretary of State could become governor even without the confirmation of the Legislative Assembly.
In 2005, the Justice Department supported this amendment, La Fortaleza said in a press release.
That amendment goes against the Constitution, which establishes that the Secretary of State must be confirmed both by the Senate and the House to occupy the position permanently, Reyes Gil said.
The Secretary of State is the only position that must be confirmed by both legislative chambers, lawyer and former governor Alejandro García Padilla said. The 1952 Journal of Sessions of the Constitutional Convention clearly shows the lawmakers´ intention that both the House and the Senate confirm the Secretary of State precisely because that is an unelected position that would replace the governor, García Padilla explained.
"It is an act of irresponsibility and immaturity from the governor to formalize an unconstitutional interpretation of Law 7 to try to legitimize Pedro Pierluisi as governor," argued Fontanet.
Both the Bar Association and the American Civil Liberties Union (ACLU) stated in writing that the governor violated the Constitution.
Edgardo Román Espada, president of the Bar Association, instructed the entity's Constitutional Development Committee to study alternatives that strengthen democracy.
However, since the rule oflaw presumes that every law is valid until a court determines otherwise, Pierluisi has the legal power to exercise all the powers of the office, said Efren Rivera Ramos, a professor at the University of Puerto Rico Law School.
“There is a genuine legal, constitutional, controversy here, that, according to the rule of law, the court will have to decide," Rivera Ramos said.
If this went to court, Rivera Ramos explained that the Executive Branch could argue that the Constitution provides that the governor's successor is the Secretary of State and, after his appointment, it would have been unconstitutional not to let Pierluisi occupy the position.
However, former Puerto Rico Federal Court Chief Judge Héctor M. Laffitte said it is very difficult for the controversy to reach the court because it is "strictly political."
"Normally courts, both state and federal ones, do not go into political issues," Laffitte said, noting as an example that the U.S. Supreme Court last month rejected evaluating cases on electoral redistribution in the states.
Yesterday, Pierluisi announced that the Senate will be able to ratify him as governor. Now that he has replaced Rosselló, his appointment as Secretary of State is no longer in effect.
His ratification is not a process ordered by legislation, but rather one that Pierluisi is willing to take, he said at a press conference.
"It is not the most advisable thing to do since controversy continues, uncertainty on the island doesn't end," Laffitte said.